Maxwell & Anor v R.

After quashing convictions obtained through grave prosecutorial misconduct, the Court of Appeal may nevertheless order a retrial under section 7(1) of the Criminal Appeal Act 1968. It must balance the public interest in prosecuting serious crime against the imperative of preserving the integrity of the criminal justice system. A retrial is inappropriate if the misconduct prevents a fair trial, but may be ordered where it can proceed on untainted, new and compelling evidence. The court should not pre-empt a trial judge’s cautious assessment of the admissibility of hearsay evidence against a co-defendant.

The appellants were convicted at Leeds Crown Court in 1998 of two robberies and murder. The prosecution case depended on Karl Chapman, a prolific informer.

Renewed applications for leave to appeal were rejected in 1999. A subsequent investigation by the Criminal Cases Review Commission uncovered extensive undisclosed benefits, inducements and improper treatment provided to Chapman by police officers. The Crown accepted that the deliberate concealment of that material amounted to serious prosecutorial misbehaviour and rendered both convictions unsafe.

The reference therefore raised only whether a retrial should be ordered. The Crown relied on admissions allegedly made by Maxwell after conviction, but contended that those admissions could also support a case against Mansell.

1. The appeals were allowed. The convictions of both appellants were unsafe because of grave police and prosecutorial misconduct. Benefits and inducements given to Chapman, and the deliberate concealment of them, deprived the defence of material capable of challenging his credibility and of advancing an abuse-of-process case.

2. The court had power under section 7(1) of the Criminal Appeal Act 1968 to order a retrial despite that misconduct. The authorities did not impose an absolute bar. The proper approach required a balance between the public interest in bringing those guilty of grave crime to justice and the public interest in protecting the integrity of the criminal justice system. A retrial could proceed fairly if the prosecution called no challenged evidence whose reliability might have been undermined by the newly disclosed misconduct.

3. The court treated the new-and-compelling-evidence criteria in section 78 of the Criminal Justice Act 2003 as an appropriate test when exercising its retrial discretion. Maxwell’s admissions were new and compelling. Particular weight attached to his handwritten account of February 1999, the truth of which he later acknowledged in the presence of his solicitor. Although the misconduct and the failed earlier appeal formed the circumstances in which the admissions emerged, the public interest in a trial for murder outweighed the competing integrity concern.

4. The position of Mansell differed. The Crown could not establish at this stage that Maxwell’s admissions would be admissible hearsay against him under section 114 of the Criminal Justice Act 2003. That provision required caution, and the trial judge would also have to consider section 78 of the Police and Criminal Evidence Act 1968. The court could not anticipate those rulings or say that there was new and compelling admissible evidence against Mansell.

5. Maxwell was ordered to stand retrial on murder and the two robbery counts. No retrial was ordered for Mansell.

• Court of Appeal (Criminal Division) On a reference by the Criminal Cases Review Commission, the court allowed the appeals, quashed both convictions and ordered a retrial for Maxwell only: [2009] EWCA Crim 2552.
• Court of Appeal (Criminal Division) Renewed applications for leave to appeal against conviction were rejected on 5 November 1999.
• Crown Court at Leeds The appellants were convicted on 27 February 1998 of two robberies and murder.